Associated Cabs, Inc. v. Issiah King ( 1999 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judge Bray and
Senior Judge Overton *
Argued at Norfolk, Virginia
ASSOCIATED CABS, INC.
MEMORANDUM OPINION** BY
v. Record No. 1823-98-1 JUDGE RICHARD S. BRAY
FEBRUARY 9, 1999
ISSIAH KING
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Kevin W. Grierson (Richard B. Donaldson;
Jones, Blechman, Woltz & Kelly, P.C., on
brief), for appellant.
No brief or argument for appellee.
Issiah King (claimant) filed a claim for benefits with the
Workers' Compensation Commission (commission) alleging a
compensable accidental injury suffered while in the employ of
Associated Cabs, Inc. (employer). The deputy commissioner
awarded temporary total disability at a rate of "$312.33 per week
. . . continuing until conditions justif[ied] a modification
thereof." The full commission affirmed, amending the award to
"$264.83 per week," also until circumstances required
modification. Employer appeals, complaining the commission
erroneously found that the accident caused claimant's injuries
*
Judge Overton participated in the hearing and decision of
this case prior to the effective date of his retirement on
January 31, 1999 and thereafter by his designation as a senior
judge pursuant to Code § 17.1-401, recodifying Code
§ 17-116.01:1.
**
Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
and a related disability and incorrectly calculated the attendant
benefits. Finding no error, we affirm the decision.
The parties are fully conversant with the record, and this
memorandum opinion recites only those facts necessary to
disposition of the appeal. On review, we construe the evidence
in the light most favorable to the prevailing party below,
claimant in this instance. See R.G. Moore Bldg. Corp. v.
Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990).
The evidence disclosed that claimant regularly drove a taxi
for employer, earning a "salary" of $300 per week and an
additional weekly "commission" of approximately $100 for driving
employer's cabs at night. While operating a taxi for employer
during a salaried period, claimant "got hit in the rear [by
another vehicle] and felt a snap . . . in the right side of [his]
neck," followed by pain in his neck and shoulder regions.
Claimant was admitted to Bon Secours-DePaul Medical Center
immediately after the accident, and a CT scan revealed
abnormalities in the cervical spine which required surgical
intervention. A report of the scan concluded that claimant's
condition
may be do [sic] entirely to old degenerative
joint disease either secondarily induced from
trauma or perhaps infection. The possibility
that the mild subluxation has occurred
secondary to this trauma superimposed on an
old injured weakened facet cannot be excluded
particularly given the clinical new acute
right upper extremity radiculopathy and
recent severe neck trauma from an automobile
accident.
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In correspondence dated December 11, 1996, Dr. Jonathan
Partington, claimant's treating neurosurgeon, reviewed claimant's
history and related findings, noting that he had
been hospitalized at Bon Secours-DePaul
Medical Center from 11/21/96 to the present.
He was admitted following a motor vehicle
accident which resulted in neck pain and
right arm weakness and numbness. The workup
revealed instability of C4-C5. He was taken
to surgery on 11/26/96 for right C5
foraminotomy, and multiple bone biopsies.
[Claimant] has subsequently developed an
apparent C4-C5 infection of the facet joint
and possible diskitis and will likely need
4-6 weeks of intravenous antimicrobial
therapy. [Claimant] still has right upper
extremity weakness and numbness, as well as
persistent neck pain.
Dr. Partington opined "that [claimant] will be disabled and
unable to be gainfully employed for at least one year."
Claimant testified that he had been asymptomatic prior to
the accident. However, he has since been disabled by "severe
problems" and has not "been released [to work] by the doctor."
The record provided no medical evidence of claimant's condition
at the time of the hearing.
Relying upon claimant's testimony, the results of the CT
scan, and Dr. Partington's report, the commission determined that
claimant "sustained an injury by accident to his neck arising out
of and in the course of his employment," which caused temporary
total disability. In computing attendant compensation benefits,
the commission included claimant's "commission" earnings.
Employer challenges the sufficiency of the evidence to support
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both the commission's causation findings and calculation of the
dependent award.
"The commission's determination regarding causation is a
finding of fact and is binding on appeal when supported by
credible evidence." Marcus v. Arlington County Bd. of
Supervisors, 15 Va. App. 544, 551, 425 S.E.2d 525, 530 (1993)
(citations omitted). A finding of disability is similarly
binding on review by the Court. See Georgia Pacific Corp. v.
Dancy, 17 Va. App. 128, 133-34, 435 S.E.2d 898, 901 (1993).
"'Medical evidence is not necessarily conclusive, but is subject
to the commission's consideration and weighing.' The testimony
of a claimant may also be considered in determining causation,
especially where the medical testimony is inconclusive." Dollar
General Store v. Cridlin, 22 Va. App. 171, 176, 468 S.E.2d 152,
154 (1996) (citations omitted).
Here, the record reflects that claimant was involved in an
accident which resulted in trauma to his neck and the onset of
pain and discomfort, necessitating immediate medical attention.
Subsequent diagnostic care identified a possible nexus between
the "severe neck trauma from an automobile accident" and the
abnormal studies of claimant's neck. Claimant's attending
neurosurgeon reported on December 11, 1996 that his symptoms
"resulted" from the accident and opined that claimant would be
"disabled . . . for at least a year." Claimant testified that he
had not "been released by the doctor yet [a]nd . . . still had
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severe problems." Such evidence provides sufficient support for
the commission's factual finding that the accident caused both
the disputed injury and disability.
Employer next contends that the commission erroneously
computed claimant's average weekly wage, arguing that he worked
as an independent contractor, rather than an employee, when
driving on commission. "Average weekly wage" includes "[t]he
earnings of the injured employee in the employment in which he
was working at the time of the injury." Code § 65.2-101(1)(a).
However, earnings as an independent contractor generally cannot
be combined with income from employment to calculate average
weekly wage. See Intermodal Servs., Inc. v. Smith, 234 Va. 596,
600, 364 S.E.2d 221, 223 (1988). Determination by the commission
of average weekly wage constitutes a factual finding. See
Chesapeake Bay Seafood House v. Clements, 14 Va. App. 143, 146,
415 S.E.2d 864, 866 (1992) (citations omitted).
"What constitutes an employee is a question of law; but,
whether the facts bring a person within the law's designation, is
usually a question of fact." Intermodal Servs., 234 Va. at 600,
364 S.E.2d at 223 (citation omitted).
Generally, "a person is an employee if he
works for wages or a salary and the person
who hires him reserves the power to fire him
and the power to exercise control over the
work to be performed." "The right of control
is the determining factor in ascertaining"
whether one is an employee or not. This
right of control includes "the power to
specify the result to be attained [and] the
power to control 'the means and methods by
which the result is to be accomplished.'" A
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person is an employee if the person for whom
he or she is working "has the power to direct
the means and methods by which [he or she]
does the work."
Metropolitan Cleaning Corp., Inc. v. Crawley, 14 Va. App. 261,
264-65, 416 S.E.2d 35, 37-38 (1992) (en banc) (citation omitted)
(alterations in original).
On the instant record, the commission correctly found "that
the claimant [on commission] was subject to the control of
[employer] both as to the result achieved, i.e. transporting
passengers from one location to another, and the means and
methods of transporting them, i.e. using [employer's] cab, in the
1
same manner that he used it when on salary." Although claimant
could "pick" his hours of commission work, he was required to
provide his services at the direction of employer, as an employee
at will, albeit on different terms of payment. Thus, credible
evidence supports the commission's inclusion of claimant's net
earnings on commission in his average weekly wage before
computing the related benefit.
Accordingly, we affirm the decision of the commission.
Affirmed.
1
Moreover, the evidence does not establish that claimant "is
excluded from taxation by the Federal Unemployment Tax Act," a
circumstance which removes "[a]ny taxicab . . . driver from the
statutory definition of "[e]mployee." Code § 65.2-101.
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